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Abortion Law in NSW: How the Law Works

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May 4, 2016

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Many would be surprised to discover that it is still an offence under the Crimes Act 1900 (NSW) to procure an abortion. This seems to go against the widely held belief within the community that that abortion is easily accessible and legal in NSW.

Section 82 outlines a maximum penalty of 10 years imprisonment for a woman who administers to herself a drug or by any other instrument or means with the intent of procuring a miscarriage.

Anyone else who administers drugs to a woman or by any other instrument or means intending to procure a miscarriage is similarly guilty of an offence punishable by 10 years imprisonment.

It is also an offence to procure or supply a drug or instrument knowing that it will be used unlawfully to procure a miscarriage, and that is punishable by 5 years imprisonment.

Essentially what all that means is that a woman cannot choose to have an abortion any time they want for any reason – it has to be ‘lawful’.

Healthcare Providers in NSW use the concept of necessity to consider whether an abortion is ‘lawful’.

Necessity is a Common Law defence which requires that :

  • the criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the acused or upon others whom he or she was bound to protect;
  • the accused must honestly have believed on reasonable grounds that he or she was placed in a situation of imminent peril; and
  • the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

In the case of Wald (1971) it was held that for the operation to have been lawful the accused must have held an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health. Commonly, these reasonable grounds have been interpreted to stem from social, economic or medical bases, and can arise either during or after the pregnancy.

What this means practically is that a health professional must consider the above on a case by case basis before deciding whether to proceed with an operation.

Abortion has been decriminalised in the ACT, Tasmania and Victoria, but the specific rules vary from state to state. For example, in some states there are time frames after which abortion does become illegal.

The policy behind the law could be said to be aimed at protecting women from taking such an irrevocable step without proper consideration. What the law effectively requires in practice is for the woman’s medical practitioner to turn their mind to, and decide whether, they hold a honest belief on reasonable grounds that performing an operation is necessary to preserve the woman involved from serious danger to their life, or physical or mental health, and to consult the woman involved in order to make that decision.

About the Author

Angela is able to assist clients with all criminal offences such as assaults, drug charges, traffic matters, theft, break and enters, firearms, sexual offences and apprehended violence orders. Angela is an experienced Court advocate having appeared in the Local and District Court, the Court of Criminal Appeal as well as in Federal jurisdictions in a multitude of matters, including complex strictly indictable trials. Read More >

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